Lenard and Rogers (No. 2)

[2018] FamCA 428

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS (NO. 2) [2018] FamCA 428

FAMILY LAW – ENFORCEMENT – CHILD SUPPORT – Whether one party owes the other monies pursuant to different orders that have been made over the years of the litigation – Where the wife owes the husband an amount which is offset by an amount to which the wife would have been entitled pursuant to an order for non-periodic child support – Where each party makes an application that the other party pay interest - Where all applications are dismissed.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989

APPLICANT: Ms Lenard

RESPONDENT: Mr Rogers

FILE NUMBER: SYC 1585 of 2010

DATE DELIVERED: 7 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 February 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. Apart from orders already made in relation to the wife’s application in a case filed 26 September 2016, that application is otherwise dismissed.

2. The husband’s application for orders in his response filed 3 January 2018 is dismissed.

3. The wife’s amended application in a case filed 16 January 2018 is dismissed.

4. The matter is to be removed from the active pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenard & Rogers (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1585 of 2010

Ms Lenard

Applicant

And

Mr Rogers

Respondent

REASONS FOR JUDGMENT

1. The parties have been litigating in this court for over seven years.

2. On 8 February 2018, having heard the issue about the children’s surname and consistent with the recommendations made by the Independent Children’s Lawyers, I made an order changing the children’s surname.

3. What is now left is whether a number of complaints by each of the parties that certain orders that have been made over the course of litigation that require one party to pay the other party money should be enforced by me. These claims include claims for interest on unpaid amounts. In addition, the wife brings an application for non-periodic child support payments in relation to two orthodontic expenses one in relation to each of the children.

4. The applications and affidavits in support of them with which I deal are confined to those that have been filed in compliance with my directions made on the 29 November 2017. Other documents filed outside the parameters of those directions are a nullity (see rule 11.02(1) Family Law Rules). The conflicting positions of the parties on the issues I am now about to discuss are made more complex by the fact that on the admissible evidence before me, and having regard to the submissions made, it was not possible to embark upon a full historical enquiry as to all the intricacies of orders made in the past and the extent to which each party had complied with orders over the years.

5. The application with which I deal is the wife’s application in a case filed 26 September 2017. The relevant orders sought in that application are 1, 10 and 13. The balance of the wife’s application in a case was either not pressed before me or not otherwise the subject of submissions.

6. The orders sought by the wife are in the following terms:

   1.The respondent, within 14 days, pay $20,315 to the applicant by transferring funds to the bank account with BSB … and account number …04;

   10.The applicant [sic] I seek an order that the respondent pay the costs of $6,873.50 and $3,370 (for non-periodic child support); and

   13.The applicant seeks an order that the respondent pay me $9,142 (for interest on monies not paid).

7. The wife also had previously claimed that she was owed an additional amount of $23,480 (discussed below).

8. The husband filed a response dated 3 January 2018. It was in the following terms:

   I respectfully request that the court now order [Ms Lenard] to pay to [Mr Rogers] the following amounts:

   1     $ 10 222.93 to satisfy the orders of Registrar Chayna made on 24 [sic] November 2014.

   2     $ 2 862.04 for costs paid to [Mr H] of [J Pty Ltd] in relation to this matter.

   3     $ 4 529.38 in interest payments due to [Ms Lenard] refusing to comply with the orders of Registrar Chayna made on 24 [sic] November 2014.

   4     $19 218.47 in order to satisfy the orders of the Full Court made on 14 December 2012 on account of [Ms Lenard’s] unsuccessful appeal against the orders of Justice Rees.

THE WIFE’S CLAIM FOR $23,480 AND $20,315

1. The wife’s claims for $23,480 and $20,315 arose from an order made by Rees J on 16 July 2012. In her affidavit filed 26 September 2017 at [137], the wife refers to two orders. Those orders are in the following terms:

   (11)That the parties forthwith do all acts and things and sign all documents required to transfer to the wife the monies in the parties’ joint account with the ANZ Bank, the rental income being applied against the mortgage and the parties equally to meet any shortfall.

   (12)That from the monies to be received by the husband by virtue of the sale of real estate referred to below the husband shall pay to the wife, from his share of the proceeds of sale, the sum of $23,480.

2. On a previous occasion, the wife had initially asserted that the payment from the husband to her pursuant to order 12 of Rees J’s orders dated 16 July 2012 had not been made. The husband in reply provided evidence that he had complied with the payment of $23,480.00. The wife ultimately conceded that the payment of order 12 had been made in two instalments, and as a consequence, compliance with order 12 had ceased to be an issue between the parties.

3. Turning then to the wife’s assertion that the husband still owes payment of $20,315.00 under order 11. The wife claims the amount of money referred to “in the parties’ joint account” as at 16 July 2012 was in the sum of $20,315.00. She asserts in her affidavit paragraph [138] dated 26 September 2017 that, “I did not receive monies pursuant to order 11 dated 16 July 2012”. However, in the wife’s same affidavit from paragraph [161] to [173] she states that that amount of $20,315.00 was in the matrimonial pool at the time that pool was divided in 2012 and that she received 55 per cent of the total matrimonial pool. The wife admits, therefore, that she has received $11,173.00 ($20,315 x 55 per cent) but if her argument is correct, is still owed $9,142.00 ($20,315 - $11,173) by the husband.

4. The husband in reply relies upon evidence in his affidavit filed on 16 January 2018 at paragraph [34]. He states that before Judge Monahan on 20 August 2013 he presented a Bank Cheque for an amount of $10,152.18 in respect of payment of the amount of $20,315.00. During submissions, the wife conceded that that amount had been paid.

5. Accordingly, it is apparent that the husband has satisfied his obligations under order 11 and the wife’s application in paragraph 1 of her application in a case dated 26 September 2017 should be dismissed.

WIFE’S CLAIM (UNDER SECTION 124 OF CHILD SUPPORT ASSESSMENT ACT) FOR LUMP SUM CHILD SUPPORT

1. The wife makes an application under Part 7 Division 5 of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The particular object of that Division is for children to have their proper needs met by their parents sharing equally for their support. The wife’s application is for the husband to share in paying orthodontic expenses. There was no dispute between the parties that there is an administrative assessment for periodic support in force in relation to the children. There is no application before me in relation to that assessment.

2. The wife’s application for non-periodic child support is not supported by all the documents required by rule 4.18 of the Family Law Rules. There was no evidence the wife had served a copy of the application on the Child Support Registrar pursuant to rule 4.23(1). The wife is a litigant in person. This child support issue is narrow and is being prosecuted in the context of there being many long-standing outstanding financial loose ends each party wants tied off. The husband, who also is a litigant in person, concentrated upon the substance and not the form of the application. In those circumstances, pursuant to rule 1.12 Family Law Rules, I dispense with any rule that might otherwise prevent me from determining this application.

3. Given the wife raises no issue relating to the current administrative assessment, I infer that the current administrative assessment requires the husband to pay the amount set out in his financial statement under the heading “Child support - assessment” in the sum of $349.19 per week.

4. The wife in paragraph [99] to [116] of her affidavit filed 26 September 2017 outline the details of the claims for non-periodic child support for the children’s dental work. 

5. The wife says that F has missing front teeth and requires orthodontic work and braces in order to correctly position and remould her teeth.  The wife seeks an order for the husband to pay $6,873.50, which is half the cost of the total dental fees of two specialists. In support of this claim, the wife annexes to her affidavit two quotes marked ‘K’ and ‘K-2’.

6. The wife is also seeking an order for the husband to pay $3,370.00, which is half the cost of E’s braces, which the wife says are required to correct the position of E’s jaw.  In support of this claim, the wife annexes to her affidavit a quote marked ‘L’.

7. The wife has established to my satisfaction that the dental work for the children is necessary.

8. The husband submits that these expenses should be considered to be normal expenses that would be covered by his payment of the periodic child support.

9. The work described in the quotes provided by the wife is for work outside the normal type of dental care that you’d expect a carer to pay from periodic child support.

10. The husband also references paragraph [25] – [30] of his affidavit dated 16 January 2018. The husband made submissions that his level of private health cover covered dental treatment. However, he did not provide sufficient evidence to establish that his health cover would cover the costs which are the subject of this application. In addition, the relationship between the parents is so dysfunctional and toxic that it would be unrealistic to expect that cooperative arrangements might be reached whereby invoices would be provided by the wife to the husband and that the husband would use his private health insurance to pay for them.

11. The wife failed to comply with the orders by filing a financial statement. The husband did file a financial statement on 31 January 2018 indicating that he is earning approximately $2,176.13 a week and has an approximate expenditure of $2,231.04 a week. He has a new wife who is earning approximately $1,030.11 a week. Some of the expenditure claimed by the husband should not take priority over this necessary dental work for the children. I take into account that I have found the husband is owed the sum of $10,221 by the wife (which is discussed below).

12. Within the confines of the evidence presented by the parties, I have regard to matters mentioned in subsections 117(4), (5), (6), (7), (7A), (7B) and (8) of the Assessment Act.

13. I find that it would be just and equitable and otherwise proper to make the order sought by the wife.

14. Given the confined nature of this application for two one-off payments, I am satisfied that, in the special circumstances of this case, it would be just and equitable and otherwise proper that the annual rate under the assessment not be reduced by the making of the order sought.

15. The annual rate of periodic child support is not to be reduced by the making of these orders for non-periodic child support.

16. For reasons explained below, I will not be making this order.

THE HUSBAND’S CLAIM FOR PAYMENT OF LEGAL COSTS

1. The husband’s primary claim is that the wife pay to him an amount of $10,220.93 to satisfy orders made by Registrar Chayna on 27 November 2014.

2. The background for this claim is that in 2012 when the husband was successful in the Full Court, an order was made that the wife pay the husband’s costs as agreed or failing agreement as assessed on a party/party basis.

3. There was no agreement as to the quantum and the matter went to a Registrar for taxation proceedings and was settled by consent and on 27 November 2014 Registrar Chayna made the following by consent:

   1       By the 28 January 2015, the parties are to do all acts and things and sign all documents necessary in order to authorise [B Real Estate] to release the amount of $18,000 (from the wife’s portion) to the husband in full and final satisfaction of the costs orders made in the Full Court of the Family Court of Australia on or about December 2012.

   2       It is noted that the parties are in dispute in relation to how the balance of the monies held in [B Real Estate] trust account is to be disbursed between the parties. 

4. By way of application 4 of the husband’s response, filed 3 January 2018, the husband now seeks to revisit that consent order and reopen the issue of quantum of costs owed to him as a result of the Full Court’s order. The original claim he made in the assessment was for the sum of $37,218. The husband consented to the order quantifying the costs for the sum of $18,000 but now seeks the difference $19,218 ($37,218 - $18,000). The husband has not established any basis upon which the assessment should be re-opened apart from the general assertion that the wife did not comply on time with the order he agreed to, and which he now seeks to have enforced.

5. The only matter I then need to consider is whether or not the wife has fulfilled her obligations under the order of 27 November 2014 to pay the $18,000 to the husband from the wife’s share of monies held by B Real Estate.

6. On 16 August 2017, in the wife’s absence, and after a request of the husband to enforce the order of 27 November 2014, I made the following orders:

   1.      Pending further order if the wife makes an application in 28 days of service of these orders upon her but otherwise by final order:

   1.1Orders 2, 3, 4, and 5 made 16 July 2012 be discharged;

   1.2I note that orders 1, 6, 7 and 8 made 16 July 2012 still apply;

   1.3The children otherwise live with their wife;

   1.4The children spend time with their husband during the first half of terms 1, 2 and 3 school holidays and second half of term 4 school holidays.

   2.      The wife may, within a period of 28 days of service of these orders upon her, file and serve an application to have the matter relisted to review those orders that I have made on a pending further order basis. If she does not do that the orders would become final orders.

   3.      The principal at [B Real Estate] distribute monies held in trust in the names of [Mr Rogers] and [Ms Lenard] in the following manner:

   3.1. Pay to [Mr Rogers] the sum of $18,000

   3.2. Pay 55 per cent of the balance to [Ms Lenard]

   3.3. Pay 45 per cent of the balance to [Mr Rogers]

7. The wife argues that order 2 means that the husband can no longer raise a complaint about whether or not Registrar Chayna’s orders have been satisfied because order 2 says that if the wife does not comply within a particular period of time then the orders will become final. The orders referred to in order 2 are the orders in order 1. Order 3 does not operate to eliminate what rights the husband has under the orders of Registrar Chayna.

8. The husband now correctly makes the point that in dividing the money in accordance with order 3 of 16 August 2017 he hasn’t received the total amount owing from the wife but received the $18,000.00 out of a pool of funds to which the wife was entitled. He correctly submits that of the $18,000 he received he was already entitled to 45 per cent of that amount which equates to $8,100 ($18,000 x 45 per cent) and therefore the wife still owes him that amount.

9. In addition, the husband complains in paragraph [18] of his affidavit filed 3 January 2018 that a final disbursement of property settlement funds didn’t take into account the fact that $2,120.92 was released to the wife by the court by way of order on 23 May 2013 in account of child support arrears owed by the wife to him. On its face, that seems to be correct.

10. Consequently, the husband is owed $9,054 by the wife ($8,100 + $954).  

THE HUSBAND’S CLAIM FOR $2,862 FOR COSTS PAID TO Mr H OF J PTY LTD

1. In the course of negotiations with the wife in respect of attempting to agree on the sum for legal costs which the Full Court had ordered the wife pay the husband, the husband engaged Mr H of J Pty Ltd to prepare an itemised cost account. The husband paid three lots of fees to that company ($1,734 + $275 + $852). The husband in effect seeks a cost order arising out of the taxation of costs before Registrar Chayna in November 2014. As set out above, this dispute was resolved by a consent order. No order for costs was made at that time. The husband made no submissions as to why the provisions of s 117(1) of the Act would not otherwise apply and did not refer to any particular factor that the court would ordinarily consider under s 117(2A) of the Act. The husband compromised his claim and accordingly the wife was not wholly unsuccessful in opposing the husband’s application for assessment. I am unable to find that it would be just to make the cost order sought.

THE PARTIES’ RESPECTIVE CLAIMS FOR INTEREST

1. In addition to the capital sum, the wife seeks in order 1 of her application dated 26 September 2017, an order for the interest in the sum of $9,142. There is no time for payment of the capital sum specified in the orders. In those circumstances, rule 1.15 of the Family Law Rules provide that the payment or transfer of funds should be as soon as practicable. Given the timing of the payments it may be that some interest might be owing under the Rules. The wife concedes all amounts are now paid in full. The wife did not present any calculation of interest based upon all the concessions which she now makes. I decline to exercise my discretion to make any order that the husband pay the wife any interest in relation to these amounts.

2. The husband claims $4,529 interest in respect of the amount owed to him. Again, I have no ability at all to make any sensible calculations in relation to interest that might be owed to him based upon the evidence provided.

3. In any event, given the overall history of this matter, I am not inclined to exercise my discretion to enforce any claim for interest.

4. The claims for interest by both parties shall be dismissed.

CONCLUSION

1. The wife’s Amended Application in a Case filed 16 January 2018 was filed out of time. It is a nullity and will be dismissed.

2. Based upon the findings made, I conclude the husband owes the wife $10,243 and the wife owes the husband $10,220. Making an enforcement order and a non-periodic child support order is discretionary. I take into account the uncertainties around the matters each party raised about which I could make no finding. I take into account the history of internecine litigation. Obviously, on an overall basis, the difference owed each way is de minimus. I accordingly intend to dismiss any outstanding application by both parties and the matter is to be removed from the active pending cases list. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 June 2018.

Associate: 

Date:  7.6.18